Dismissed

M/S. Abs Digital Cables Private Limited v. M/S. Shakun Gases Private Limited

Bombay HC2 Jan 2024IA/15602/2023

Case brief

AI extract

What is this about?

Commercial appeal challenging dismissal of a plaint-rejection application under Order VII Rule 11(d) CPC was withdrawn after the respondent pointed out that such orders are not appealable under Section 13(1A) of the Commercial Courts Act, per a Division Bench decision. Appeal dismissed as withdrawn; interim applications disposed.

What the court decided

AI extract

M/S. Abs Digital Cables Private Limited Vs… — Contract and Commercial Disputes | Bombay HC (2024)

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Digitally signed by AARTI AARTIGAJANAN GAJANANPALKARDate: PALKAR 2024.01.03 17:56:15 +0530

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23.COMAOST.18619.2023.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023 ALONG WITH

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INTERIM APPLICATION NO.15602 OF 2023 IN

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COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023 ALONG WITH

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INTERIM APPLICATION (STAMP) NO.18622 OF 2023 IN COMMERCIAL APPEAL (STAMP) NO.18619 OF 2023

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M/s. ABC Digital Cables Private Limited ....Appellant/Applicant

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Versus

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M/s. Shakun Gases Pvt. Ltd.

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....Respondent

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Mr. Ashok Saraogi, Advocate for Appellant/Applicant.

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Mr. Girish Kedia a/w. Mr. Krushang Kedia, Advocates for Respondent.

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CORAM : B. P. COLABAWALLA &

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SOMASEKHAR SUNDARESAN, JJ.

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DATE : JANUARY 02, 2024

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P. C.

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Mentioned. With the consent of parties, taken out of turn.

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The above Commercial Appeal inter-alia challenges the order

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passed by the Bombay City Civil Court, Borivali Division at Dindoshi,

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Page 1 of 3 JANUARY 2, 2024

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Aarti Palkar

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23.COMAOST.18619.2023.doc

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Goregaon, Mumbai dated 10^th April, 2023. By the impugned order, the application filed by the Appellant for rejection of the plaint under Order VII Rule 11(d) was dismissed by the Lower Court. It is to impugn this order that the present Appeal is filed.

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The learned counsel appearing on behalf of the Respondent took a preliminary objection, namely, that the above Appeal is not maintainable under the provisions of the Commercial Courts Act, 2015. In this regard, he brought to our attention a decision of a Division Bench of this Court in the case of Bank of India & Anr. Vs. M/s. Maruti Civil Works [Appeal From Order No.362 of 2021 in Commercial Suit No.6 of 2019, decided on 15^th December, 2023]. He submitted that in the aforesaid decision, a Division Bench of this Court has clearly held that an appeal under Section 13(1A) of the Commercial Courts Act, 2015 would lie only against the judgment and/or orders which are enumerated or enlisted under Order XLIII of the Code of Civil Procedure, 1908. An order rejecting an Application moved under Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not enumarated or enlisted in Order XLIII of the CPC. Hence, such an order is not appealable.

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Faced with this decision, Mr. Saraogi, the learned counsel appearing on behalf of the Appellant, sought leave to withdraw the

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Page 2 of 3 JANUARY 2, 2024

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Aarti Palkar

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23.COMAOST.18619.2023.doc

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above Appeal. In these circumstances, the above Appeal is dismissed as withdrawn. However, there shall be no order as to costs.

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We make it clear that the withdrawal of this Appeal will not disentitle the Appellant to challenge the impugned order in appropriate proceedings if he is so entitled to in law.

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In view of the disposal of the above Commercial Appeal, nothing survives in the above Interim Applications and the same are disposed of accordingly.

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This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

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[SOMASEKHAR SUNDARESAN, J.] [B.P. COLABAWALLA, J.]

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Page 3 of 3 JANUARY 2, 2024

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Aarti Palkar

M/S. Abs Digital Cables Private Limited v. M/S. Shakun Gases Private Limited

Case brief

What is this about?

What the court decided

M/S. Abs Digital Cables Private Limited v. M/S. Shakun Gases Private Limited

Case brief

What is this about?

What the court decided

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